Business

Communications regulator cleared to search Eircom data over competition concerns

ComReg conducted an unannounced search of Eircom’s premises and seized material as part of investigation last year

The High Court directed that the communications regulator coulc conduct searches of data seized from Eircom offices. Photograph: Alan Betson

Fri Feb 2 2024 - 15:15

The High Court has directed that the communications regulator can conduct searches of data seized from Eircom as part of an investigation into whether the company is complying with market competition obligations.

ComReg began an investigation into Eircom, trading as Eir, after the company published details of a proposed discount scheme for access to its fibre to home/businesses scheme by its wholesale customers, namely other service providers such as Sky.

ComReg said this scheme did not meet regulatory requirements and it was concerned about the impact it would have on competition.

Eircom, which is the dominant provider in the market, withdrew the discount scheme but ComReg remained concerned about the fact Eircom had engaged in discussions with other operators about proposed discount schemes before the scheme had been approved by the watchdog.

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As a result, ComReg conducted an unannounced search of the premises of Eircom over three days, between May 31st and June 2nd last year and seized some of the company’s digital data.

[ EU backs ComReg decision to restrict Eir on fibre broadband ]

ComReg then applied to the High Court asking it to approve a step plan it had proposed for eliminating privileged and irrelevant/private information from the seized data.

Eircom argued that if ComReg conducted the electronic keyword search to remove privileged or irrelevant information, then it was likely that ComReg would have access to Eircom’s privileged or private/confidential information.

This would mean, it says, that the confidentiality of its information would not be “maintained”, as required by statute.

Therefore, it argued, Eircom itself should search and provide the refined data to ComReg with privileged/irrelevant information removed. ComReg disagreed.

Eircom also refused to make any submissions to ComReg about the format of electronic word searches that should be carried out other than that related to certain lawyers and staff who authored or appeared on privileged documents. Eircom said it did so because it believed the scope of the investigation was not sufficiently clear.

In a judgment on Friday, Mr Justice Michael Twomey said ComReg should conduct the search. Otherwise, he said, “the very purpose of search and seizure powers, by a regulator as part of its investigation of a regulated entity, would be undermined.”

He also approved a plan proposed by ComReg that involves the use of an electronic word search designed to eliminate privileged and irrelevant material from the seized data, subject to a small number of minor modifications.

He also encouraged the parties to engage to see if agreement could be reached regarding all outstanding matters, without the need for further court time.

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